MARIYOMMA Vs. AAYISSA

JUDGEMENT

(1.) THE above appeal is preferred by defendants 18 to 21, 23, 26, 28, 30, 32 and 33 in O. S. No. 422 of 1982 on the file of the Subordinate Judges Court, tellicherry. THE suit was filed for partition. THEre are 36 plaintiffs and 33 defendants in the suit. THE suit was filed on the following grounds:

(2.) PLAINTIFFS and defendants 1 to 13, the deceased assainar, Moidu and Abdulla were members of a Muslim Marumakkathayam family, called Arool Koliantavide Tarwad. The plaint 'b' schedule properties and building therein belonged to one Kunhali of Puthalathu Thaliyan Thottoli. The aforesaid Kunhali was following the Marumakkathayam system of law. With regard to the properties belonging to Kunhali, he executed a Will dated 3. 3. 1904 and it was registered on 4. 6. 1904. As per the Will, the plaint 'b' schedule properties were bequeathed to the wife of Kunhali, viz. , Pathumma and her children, Kunhamina, Assainar, Katheessa, Moidu and the first plaintiff Ayisha and to the women members of that family. According to the plaintiffs, after the death of Kunhali, the plaint'b' schedule property belonged to the Tarwad consisting of the wife and children of Kunhali. Accordingly, the property was in the possession of thavazhi Karanavar, Assainar, till his death and after the death of Assainar, the next seniormost member, Moidu was in possession till 1974. Assainar was taking the income from the property as Karanavar. The present seniormost member of the family is the first defendant.

(3.) SEPARATE written statements were filed by the defendants. First defendant filed a written statement as follows:- He denied that the plaint schedule properties were Thavazhi properties. He admits the will dated 21. 3. 1904, but submits that the properties belonged exclusively to the wife and children of Kunhali. It does not belong to the Thavazhi. Further it is stated that there was a partition among the heirs in 1968 and the parties are in possession of the properties as per the oral partition of 1968. In the written statement filed by defendants 3 to 13, the following contentions are raised. The allegation that the parties belonged to Marumakkathayam family is denied. The execution of the Will in March, 1904 is admitted. It is also admitted that the properties belong to Thavazhi consisting of defendants 1 to 13, assainarhaji, Moidu, Kunhamina and Katheessa. These defendants supported the plaintiffs and they prayed that they should be given 11 shares out of 52 shares.